Citation Nr: 0400212
Decision Date: 01/06/04 Archive Date: 01/21/04
DOCKET NO. 02-20 094 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Propriety of forfeiture of eligibility for benefits under
the laws administered by the Department of Veterans Affairs
in accordance with 38 U.S.C. § 6103(a).
2. Entitlement to service connection for ischemic heart
disease.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and son
ATTORNEY FOR THE BOARD
T. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who had recognized active service
from January 1942 to June 1942, recognized guerrilla service
from July 1942 to June 1945, and recognized Regular
Philippine Army service from June 1945 to June 1946. He was
a prisoner-of-war (POW) from April 10, 1942, to June 5, 1942.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1999 rating decision by the
Manila, the Republic of the Philippines, Regional Office (RO)
of the Department of Veterans Affairs (VA), and from a
February 2002 determination by the Veterans Benefits
Administration Office in Washington, DC.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The Board notes at the outset that on November 9, 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) (codified at
38 U.S.C.A. § 5100 et seq.) became law with significant
changes in VA's duty to notify and assist. Regulations
implementing the VCAA have also been published. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a). While it is unclear
whether or not VCAA notice is required in forfeiture cases,
the Board finds the appellant should be notified of the
provisions of the VCAA as it applies to his present appeal.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In a decision issued May 1, 2003, the United States Court of
Appeals for the Federal Circuit (Federal Circuit) invalidated
38 C.F.R. § 19.9(a)(2)(ii), a regulation which had allowed
the Board to provide the requisite VCAA notice without
remanding such matters to the RO. Disabled American Veterans
et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed.
Cir. 2003) (DAV).
In a subsequent decision the Federal Circuit also invalidated
the 30-day response period contained in 38 C.F.R. §
3.159(b)(1) as inconsistent with 38 U.S.C. § 5103(b)(1).
Paralyzed Veterans of American v. Secretary of Veterans
Affairs, 345 F.3d 1334 (2003) (PVA). It was noted that the
30-day period provided in § 3.159(b)(1) to respond to a VCCA
duty to notify was misleading and detrimental to claimants
whose claims were prematurely denied short of the statutory
one-year period provided for response.
Under 38 U.S.C.A. § 6103(a), any person who knowingly makes
or causes to be made or conspires, combines, aids, or assists
in, agrees to, arranges for, or in any way procures the
making or presentation of a false or fraudulent affidavit,
declaration, certificate, statement, voucher, or paper,
concerning any claim for benefits under any of the laws
administered by the Secretary, shall forfeit all rights,
claims, and benefits under all laws administered by the
Secretary. Fraud is defined as an act committed in
perpetration of one of the above-listed actions. 38 C.F.R.
§ 3.901.
A forfeiture action is an adversarial process initiated by
VA. The United States Court of Appeals for Veterans Claims
has held, in essence, that this process required the
application of a "beyond a reasonable doubt standard" to
declare a forfeiture. See Trilles v. West, 13 Vet. App. 314,
320-22, 326-27 (2000). The Court stated that the standard of
proof for such matters was much higher than the typical
claims adjudication standard and that the "beyond a
reasonable doubt" standard was a higher standard of proof
than the "clear and unmistakable evidence (obvious or
manifest)" standard required to rebut the presumption of
aggravation under 38 C.F.R. § 3.306(b) or the "clear and
convincing evidence" standard set forth at 38 C.F.R.
§ 3.343(c) required to show actual employability in reducing
a rating of 100 percent.
In this case, a review of the record shows the forfeiture
matter on appeal was decided as "clearly" having been shown
by the evidence of record. The record does not indicate the
RO has considered the higher standard of proof required nor
that the appellant has been adequately notified of the
applicable standard of proof in his case. Therefore, further
development is required prior to appellate review.
Accordingly, the case is REMANDED for the following:
1. The RO should review the record to
ensure compliance with all notice and
assistance requirements set forth in the
VCAA. The veteran should specifically be
advised of the standard of proof that is
required, and given the opportunity to
present further evidence and argument.
2. After completion of the above and any
additional development deemed necessary,
the RO should review the issues on appeal
with consideration of all applicable law
and regulations (including that
forfeiture requires a "beyond a
reasonable doubt" standard of proof).
If the benefits sought remain denied, the
appellant should be furnished an
appropriate supplemental statement of the
case and afforded the opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The purposes of this remand are to ensure due process,
complete the record, and ensure compliance with the
requirements of VCAA in keeping with the holdings of the
Federal Circuit in DAV and PVA, supra as well as the guidance
of the Court in Quartuccio, supra. The appellant has the
right to submit additional evidence and argument on the
matters the Board has remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999). This claim must be afforded
expeditious treatment by the RO. The law requires that all
claims that are remanded by the Board for additional
development or other appropriate action must be handled in an
expeditious manner.
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).